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Thursday, September 26, 2013

A funny thing happened at a Senate Judiciary Committee hearing yesterday: Tenth Circuit Court of Appeals nominee Carolyn McHugh appeared for her confirmation hearing, and no Republican Senator complained that the Tenth Circuit’s caseload is too small to confirm another judge.

Judge Carolyn McHugh

It’s been a different story for President Obama’s three D.C. Circuit nominees. At each of their respective hearings, the Republicans sounded the same refrain: the D.C. Circuit doesn’t have enough cases to appoint new judges, new judges are too expensive, and the President’s attempt to fill preexisting, vacant seats is mere “court packing” that should be opposed.

So when Judge McHugh—currently the presiding judge of the Utah Court of Appeals—came before the Senate Judiciary Committee, it was reasonable to expect the same line of argument. After all, based on the most recent stats from the Administrative Office of the U.S. Courts (marking the 12 month period ending March 31, 2013), the D.C. Circuit actually has more pending cases per active judge than does the Tenth. The D.C. Circuit has 1,456 pending appeals, which, divided among the court’s eight active judges, is 182 cases per judge. By contrast, the Tenth Circuit’s 1,318 pending appeals and 10 active judges results in 132 cases per judge—50 fewer than the D.C. Circuit. In fact, even if the Senate confirms all three D.C. Circuit nominees, the number of cases per active judge would only drop to 132—which is precisely the Tenth Circuit’s work-rate before either Carolyn McHugh—or her fellow nominee, Nancy Moritz—is added to the bench.

But these numbers never came up.

UPDATE, OCT. 2, 2013: This week, the Administrative Office of U.S. Courts released the statistics on judicial caseload through June 30, 2013, and the Republican caseload argument has further weakened. Based on these updated numbers, the D.C. Circuit’s caseload has increased from 1,456 pending cases to 1,479—that amounts to an additional three appeals per active judge.

Now, as both Alliance for Justice and others have already shown, the Republican caseload argument is wholly without merit. But one would think they would at least apply it consistently, if only to maintain the façade of sincerity.

None of this is to say that Tenth Circuit seats shouldn’t be filled. To the contrary, Carolyn McHugh is an exceptionally well-qualified jurist who—like the President’s D.C. Circuit nominees—should be swiftly confirmed. But the Republican’s selective use of the caseload argument exposes their staunch D.C. Circuit opposition for what it really is: pure partisan obstructionism employed solely to keep Democrat-appointed judges off the nation’s second most powerful court. The Republicans like the D.C. Circuit’s current conservative bent, and they are groping for whatever argument they can to maintain the status quo.

On second thought, maybe “funny” isn’t the right word. With the crucial role that the D.C. Circuit plays in the federal judiciary—taking on complex regulatory issues involving the environment, labor, and other areas that directly impact the daily lives of all Americans—there is simply too much at stake.